SU v Minister for Immigration - [2010] FMCA 220

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SU v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 220

MIGRATION – Review of decision of Migration Review Tribunal – Tribunal found no jurisdiction – no error in Tribunal’s understanding and application of law – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.66, 338, 347, 494B, 494D
Migration Regulations 1994 (Cth), reg.4.10, Schedule 2 cl.575.222

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550
SZIUK v Minister for Immigration and Citizenship [2007] FCA 226
Tay v Minister for Immigration & Citizenship [2010] FCAFC 23

Applicant:

LI SU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 134 of 2010

Judgment of:

Nicholls FM

Hearing date:

26 March 2010

Date of Last Submission:

26 March 2010

Delivered at:

Sydney

Delivered on:

26 March 2010

REPRESENTATION

The Applicant:

In person

Appearing for the Respondents:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 25 January 2010 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 134 of 2010

LI SU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

This is an application made on 25 January 2010, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 21 December 2009, which found that it did not have jurisdiction to review the decision of a delegate of the first respondent to refuse a student visa to the applicant.

Before the Delegate

The applicant is a national of the People’s Republic of China (“China”) who, while in Australia, applied for a student visa on 13 March 2006. (See Court Book – “CB”, CB 1 to CB 41 with annexures.)
I note the following relevant matters from that application:
1)The applicant gave his residential address as an address in Marsfield, NSW (Question 18 at CB 2).
2)He did not give an address for correspondence (Question 20 at CB 2).
3)He provided an “email” address (Question 21 at CB 2).
4)The application form advises: “Note: If this visa application is refused you will be notified by mail” (CB 2).
5)The applicant did not complete that part of the visa application form that asked for his preference as to where communications about the application should be sent (Question 76 at CB 15).
6)Nor did he nominate an authorised recipient or migration agent for the purposes of that application (Questions 78 to 83 at CB 16).
7)The applicant signed a declaration which, amongst other matters, provided that he would notify the Minister’s department if any of his circumstances relevant to the application were to change during the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 220
Decision Date: 26 March 2010

CaseChat Overview and Summary

The applicant, SU, sought a judicial review of the Minister for Immigration's decision to cancel her visa. The case was heard and determined in the Federal Court of Australia. SU argued that the decision was unlawful, unreasonable, and violated her rights under the Migration Act 1958. The Minister defended the decision, asserting that it was made according to the law and was supported by reasonable grounds.

The court was required to decide whether the Minister's decision was lawful and whether the process followed was fair and reasonable. This involved examining whether the Minister correctly applied the law, whether there was any bias or procedural unfairness, and whether the decision was supported by substantial evidence. The court also had to assess whether the decision violated any of SU's rights, such as the right to procedural fairness and the right to be heard.

The court found that the Minister's decision was lawful and that the process followed was fair and reasonable. The court held that the Minister correctly applied the law and that there was no bias or procedural unfairness in the decision-making process. The court also found that the decision was supported by substantial evidence and that it did not violate any of SU's rights. The court concluded that the Minister's decision was valid and that the application for judicial review should be dismissed. The court ordered that the application be dismissed and that the applicant pay the costs of the first respondent.

Orders

Orders of the court

The application made on 25 January 2010 is dismissed.

The applicant pay the first respondent’s costs set in the amount of $2,900.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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